Anthony Aust. Handbook of International Law
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4. The ICTY has jurisdiction over ‘serious violations of International Humanitarian Law’.
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humanitarian aid. Yet IHL is a neat abbreviation and so will be used for the rest of this chapter.
Even if a state resorts unlawfully to the use of force, IHL will still apply to all parties involved in
the conflict.
5
For this there does not have to be a declaration of war or the recognition of a state of
war,
6
the mere existence in fact of an armed conflict being enough.
7
In IHL, the term ‘armed
conflict’ has now replaced ‘war’. IHL is very detailed and complex. There are over thirty treaties. It
is not possible here to do more than mention the more important treaties and principles. For a much
fuller treatment of the subject one must consult specialist books such as those listed above.
Sources
Most IHL is now found in multilateral treaties, though an IHL treaty creates in effect a network of
bilateral obligations and so usually enters into force after only two states have ratified. Also, unlike
most other treaties, the rights and obligations are not reciprocal: if a treaty is violated by one party to
a conflict (e.g. by the murder of POWs) another party is not entitled to respond in like form or
commit a different breach of IHL.
8
Broadly speaking, IHL treaties can be divided into two main streams: those stating the rules on
how hostilities can be conducted in a lawful manner (‘Hague Law’) and those governing the
treatment of non-combatants (‘Geneva Law’). These terms reflect the fact that the modern law was
first comprehensively promulgated by the Hague Conventions of 1907
9
and then by the Geneva
Conventions, of which the latest are the four of 1949, which have 192 parties.
10
A sub-species of
Hague Law are those treaties restricting the use of certain weapons (rather than banning their
5. See the ‘Reaffirming’ paragraph of the preamble to Additional Protocol of 1977 (n. 12 below).
6. See C. Greenwood, ‘The Concept of War in Modern International Law’ (1987) ICLQ 283.
7. See common Article 2 of the four Geneva Conventions.
8. But see p. 257 below on reprisals.
9. Only the following are still applicable: Hague Conventions (War on Land) and its Regulations,
(Neutrality), (Conversion of Merchant Ships into Warships), (Automatic Submarine Contact Mines),
(Naval Bombardment), (Right of Capture in Naval Warfare) and XIII (Neutrality in Naval Warfare).
For their texts and very useful introductions, see Roberts and Guelff, Documents on the Laws of War, 3rd
edn, oxford, 2000, pp. 67–137.
10. (Wounded and Sick on Land), (Wounded and Sick at Sea), (POWs) and (Civilians): see
Roberts and Guelff, Documents on the Laws of War, 3rd edn, Oxford, 2000, pp. 195–369. For an
authoritative commentary on them, see Pictet (ed.), The Geneva Conventions of 12 August 1949,
Commentary, Geneva, 1953–60.
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production), the most recent being the Certain Conventional Weapons Convention 1980 (CCWC).
11
Geneva Law has been supplemented by Additional Protocols and of 1977.
12
The first
supplements the four Geneva Conventions, and applies also to armed conflicts between a state and a
national liberation movement. The second deals with internal conflicts. Both have been widely
ratified. Additional Protocol now has 162 parties and Additional Protocol 157 parties. But it
would be a mistake to see Geneva Law and Hague Law as mutually exclusive. There has been a
tendency for the two streams to merge. For example, a significant part of Additional Protocol
modernises rules of combat, in particular by emphasising the hugely important principle of
proportionality. Additional Protocol also deals with rules of combat. Similarly, the borderline
between IHL and human rights law is becoming rather less distinct.
13
Even when a state is not party to an IHL treaty it will be bound by those of its rules that now also
reflect customary international law.
14
The degree to which IHL treaties reflect, or have come to
represent, customary law is controversial.
15
The original Hague Law, and much of Geneva Law,
although not yet all of Additional Protocols and , are now regarded as reflecting customary law
and constitute the main body of IHL.
16
The importance of customary law is emphasised by the
principle in the so-called Martens Clause,
17
first enunciated in the Hague Conventions and later in
the Geneva Conventions.
18
Article 1(2) of Additional Protocol reaffirmed the application of the
principle in cases not covered by the Protocol or by other treaties, that ‘civilians and combatants
remain under the protection and authority of the principles of international law derived from
established custom, from the principles of humanity and from the dictates of public conscience’.
19
11. See p. 255 below.
12. 1125 UNTS 3 (No. 17512); ILM (1977) 1391; UKTS (1999) 29 and 30; Roberts and Guelff,
Documents on the Laws of War, 3rd edn, Oxford, 2000, pp. 419–512. And see Sandoz et al. (eds.),
Commentary on the Additional Protocols 1977 to the Geneva Conventions 1949, Geneva, 1987.
13. See also p. 233 above.
14. See p. 8 above.
15. Although useful, J.-M. Haenckaerts (ed.), ICRC Study on Customary Rules of International
Humanitarian Law, Cambridge, 2005, overstates many claims to customary law status.
16. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports
(2004), para. 89; ILM (2004) 1009. There are still significant states that are not yet parties to the two
Protocols, Germany and the United States in particular.
17. See Green, The Contemporary Law of Armed Conflict, 2nd edn, Manchester, 2000, pp. 17–18.
18. E.g. Article 63 of the First Geneva Convention.
19. The preamble to Additional Protocol has a simpler version.
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International and internal armed conflicts
Most IHL deals with international armed conflicts, that is, those between states. Even when a state
sends armed forces to another state at its request to fight insurgents, that does not give the conflict an
international character.
20
Common Article 3 of the four Geneva Conventions 1949 has some rather
inadequate humanitarian principles applicable to ‘armed conflict not of an international character’.
So with the increased concern about armed conflicts that are solely or partly internal, such as civil
wars, Additional Protocol developed and supplemented common Article 3 in respect of armed
conflicts within a state between its forces and dissident forces or other organised armed groups. But,
unlike the rest of the Geneva Conventions, neither Article 3 nor Additional Protocol has
enforcement provisions.
The legal distinction between international and internal armed conflicts is, however, becoming
smaller. In Tadic, the International Criminal Tribunal for the Former Yugoslavia (ICTY) ruled that it
has, albeit by implication, jurisdiction over Article 3 crimes. Its sister court, the International
Criminal Tribunal for Rwanda (ICTR), has express jurisdiction over breaches of Article 3 and
Additional Protocol ;
21
and the International Criminal Court (ICC) has jurisdiction over crimes
committed during an internal armed conflict.
22
The more recent treaties on weaponry, such as the
1996 amended Protocol to the CCWC (on landmines) and the Landmines Convention 1997,
23
apply also to internal armed conflicts. The ICTY decision suggests that the customary law on
internal armed conflicts is essentially the same as for international armed conflicts. Although the two
Additional Protocols are significantly different, and many internal armed conflicts do not reach the
Additional Protocol threshold, the Tadic ruling is realistic and likely to be followed by other
courts and tribunals, international and national. Article 8(2)(c) to (f) of the ICC Statute lists
extensively war crimes committed during internal conflicts. The wisest course for a force
commander is to treat any military operation as if it is an international armed conflict.
The central principles of IHL are that belligerents do not have an unlimited choice of means to
attack the enemy; the distinction between combatants
20. See the decision of the Appeals Chamber in Tadic (Jurisdiction), www.icty.org (Case IT-94-1-AR72);
105 ILR 453 at 489 et seq.
21. See p. 253 above.
22. See p. 277 below.
23. 2056 UNTS 241 (No. 35597); ILM (1997) 1509; UKTS (2001) 21.
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and non-combatants must be respected; non-combatants, whether prisoners of war, the sick or
wounded, or civilians, must be treated with humanity; and attacks must be directed against military,
not civilian, objectives. In the two World Wars there were deliberate attacks on civilian objects,
widespread plunder and acts of revenge. Today, it is clear that only those acts that are necessary to
defeat the enemy are permissible, and so the means (e.g. weapons) and the objects against which
they are used are restricted. The basic rules for land warfare apply also to warfare at sea or in the air,
subject to the necessary adaptations.
Weaponry
The use of certain types of weapon is prohibited.
Conventional weapons
Article 35 of Additional Protocol reconfirms that the means of injuring the enemy are not
unlimited, and thus it is ‘prohibited to employ arms, projectiles and material and methods of warfare
of a nature to cause superfluous injury or unnecessary suffering’. The means are set out in treaties
and other instruments that are now regarded as representing customary international law, such as the
1868 St Petersburg Declaration,
24
the 1899 Hague Declarations 2 (Asphyxiating Gases) and 3
(Expanding Bullets)
25
and Hague Convention and its annexed Regulations Respecting the Laws
and Customs of War on Land.
26
The principal and most detailed modern treaty is the Certain
Conventional Weapons Convention (CCWC) 1980, which has complex technical provisions in its
three original Protocols on ( ) Non-Detectable Fragments, ( ) Mines, Booby-Traps etc., and ( )
Incendiaries.
27
On ratifying, a state has to consent to be bound by at least two of the Protocols.
Protocol on Laser Weapons was adopted
24. Roberts and Guelff, Documents on the Laws of War, 3rd edn, Oxford, 2000, p. 53.
25. Ibid., pp. 59 and 63 respectively.
26. Ibid., pp. 67 and 73 respectively.
27. UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which
May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects 1980, 1342 UNTS 137 (No.
22495); ILM (1980) 1523; UKTS (1996) 105; Roberts and Guelff, Documents on the Laws of War, 3rd
edn, Oxford, 2000, pp. 515–60. For the status of the Convention and Protocols, see UN Multilateral
Treaties, Ch. .2. After twenty-five years, the Convention has only ninety-nine parties, and ratification
of the later Protocols is slow. For some of the reasons, see A. Aust, ‘Limping Treaties: Lessons from
Multilateral Treaty-Making’ (2003) NILR 243 at 259–60.
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in 1995 and Protocol on explosive remnants of war in 2003. Although Protocol prohibits only
the indiscriminate use of landmines, Amended Protocol of 1996 applies also to internal armed
conflicts and the transfer of landmines, but still not their use, stockpiling or production, which are
covered by the Landmines Convention 1997.
28
A general amendment to the CCWC and its
Protocols to apply them to all non-international armed conflicts was adopted in 2001.
29
Nuclear, chemical and biological weapons
Although no treaty specifically prohibits the use of nuclear weapons, it is widely agreed that IHL
applies equally to their use. The International Court of Justice has held, unanimously, that IHL
applies to the threat or use of nuclear weapons, but decided, although only by the casting vote of its
President, that it could not ‘conclude definitively whether the threat or use of nuclear weapons
would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival
of a state would be at stake’.
30
The Court does not appear to have considered the, admittedly
paradoxical, possibility that in certain exceptional situations the threat or even use of nuclear
weapons might be done altruistically to support demands by it or the United Nations for the
observance of fundamental human rights, such as the prohibitions on genocide or, indeed, the use of
other weapons of mass destruction against a third state. The advisory opinion may not weigh that
heavily with a state that feels that morally it has no choice but to use a nuclear weapon, however
terrible that would be.
The so-called Geneva Gas Protocol 1925
31
prohibited the first use of asphyxiating, poisonous or
other gases and bacteriological methods of warfare, and is now generally recognised as representing
customary international law. It has been supplemented by the Biological Weapons Convention
1972
32
and the Chemical Weapons Convention 1993.
33
Although they are more in the nature of
disarmament treaties, the prohibitions
28. 2056 UNTS 241 (No. 35597); ILM (1997) 1509; UKTS (2001) 21.
29. See Schindler and Toman, The Laws of Armed Conflict, 4th edn, Leiden, 2004 or www.icrc.org/ihl/.
30. The Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, ICJ Reports (1996), p. 226;
110 ILR 163.
31. Roberts and Guelff, Documents on the Laws of War, 3rd edn, Oxford, 2000, p. 157.
32. 1015 UNTS 163 (No. 14860); ILM (1972) 309; UKTS (1976) 11.